The New Context for the Contraceptive Mandate

While a week has passed since the Supreme Court issued its decision in NFIB v. Sebelius (the case upholding the Patient Protection and Affordable Care Act, sometimes referred to as Obamacare), the news continues to buzz with comment and analysis about the ruling and the next phase in the debate concerning the overall merits of the legislation. Rather than add to the chatter circulating throughout the blogosphere about the quality of the opinion or the future of the health-care act, I thought that I would offer a few words concerning the relationship between the NFIB case and the challenges to the contraceptive mandate.
Most importantly, keep in mind that the Supreme Court has not ruled on the legality of the HHS contraceptive mandate. There are two mandates receiving much attention in the news nowadays. While there is a relationship between the two, each is distinct from the other.

The first is the individual mandate, which will compel those without health insurance to purchase insurance via government-sponsored exchanges. The second is a separate contraceptive mandate that will require employers not otherwise exempt from the law to purchase insurance that includes contraception and sterilization coverage. The distinction is necessary to appreciate what the Court did and did not say in last week’s decision. The Court’s ruling last week only addresses directly the individual mandate, which it upheld in a 5-4 vote on the basis of the federal government’s taxing power. The Court did not pass upon the ultimate legality of the contraceptive mandate.

What is the relationship then between Obamacare and the contraceptive mandate? The authority for the Department of Health and Human Services to issue the contraceptive mandate stems from the broader Obamacare legislation. Accordingly, the challenge to the individual mandate could have had implications for the survival of the contraceptive mandate, had the Court decided differently last week. A brief explanation follows.

If the Supreme Court had decided that the individual mandate was unconstitutional, then it would have had two options. One, it could have merely modified the effect of the implementation of Obamacare by striking the individual mandate and allowing the other provisions of the broader act to stand; two, it could have struck down the entire Obamacare legislation by determining that the act’s legislative history suggests that the individual mandate is so central to Obamacare that Congress would never have passed the legislation in its absence (which was what the challengers were arguing).

If the Court had found the individual mandate unconstitutional and found reason to select the second option (strike down Obamacare entirely), then HHS would have no authority to promulgate the contraceptive mandate because the agency’s authority to do so stems from Obamacare. Without Obamacare, HHS couldn’t force institutions and individuals to buy contraception and sterilization coverage.

Nonetheless, several challenges to the federal government’s authority to compel institutions and individuals to purchase contraception and sterilization coverage remain. Among them are the dozen lawsuits filed in various federal courts throughout the country on May 21. Generally speaking, these lawsuits concern the legality of the contraceptive mandate under the federal Religious Freedom and Restoration Act (RFRA), which was signed into law by President Clinton in 1993. In brief, RFRA aims at preventing purportedly ‘religious-neutral’ federal laws of general applicability from substantially burdening the free exercise of religion. Under RFRA, a federal law that substantially burdens the free exercise of religion can be upheld only if it is necessary to further a “compelling government interest” and represents the “least restrictive means” available to the government to pursue that interest.

Whether the contraceptive mandate can stand in light of RFRA is a question that the courts have yet to answer. However, it is worth pointing out that regardless of whether the federal government has a compelling government interest in preventing pregnancy, it is difficult to see how the latest policy represents the “least restrictive means” toward pursuing the goal of expanding the number of sterilized and contracepting women. After all, if the availability of sterilization procedures and contraceptive drugs and devices were so pressing, the government could open its own dispensaries and provide the products and services for free, rather than force objecting institutions and individuals to do their dirty work for them.

And that is worth keeping at the fore. What is central to the debate concerning the contraceptive mandate is whether the federal government can force institutions and individuals to violate their consciences. Presently, this Administration is sending the message that while it allows conscientious objectors from military actions, it will not tolerate objections to its war on pregnancy. Whether this posture is a legal one to take will remain the subject of future debate in our courtrooms.